Republicans Block Habeas for Gitmo Detainees

Despite the support of a solid majority of the US Senate, a measure designed to restore the right of foreign terrorist suspects to challenge their detention in federal court was blocked here Wednesday on a procedural maneuver.

The measure, an amendment to the 2008 defense authorization bill, would have restored habeas corpus rights for non-citizens in US custody, including the some 340 prisoners still held at the naval detention facility at Guantanamo Bay, Cuba, many of whom have been there for more than five years.

Fifty-six senators, including six Republicans, voted for the measure, four short of the 60 needed to cut off a threatened filibuster against it. Forty-three senators, all Republicans, opposed it. Of the 51 Democrats, only Sen. Joseph Lieberman, a strong supporter of the President George W. Bush’s "global war on terror" who calls himself an Independent Democrat, voted against cutting off debate.

Reaction from human rights groups that had strongly supported the measure was mixed.

"The United States Senate missed a major opportunity to demonstrate leadership by failing to provide senators the opportunity to help reestablish a cornerstone of the US justice system  the right to habeas corpus," said Larry Cox, executive director of the US section of Amnesty International (AIUSA).

"By not voting for cloture, the Senate gave up an important chance to help restore the United States’ reputation as a nation that respects and adheres to the rule of law," he added.

But Human Rights Watch (HRW), the American Civil Liberties Union (ACLU), and Human Rights First (HRF) were more heartened by the votes.

"Today’s vote signals that Congress will ultimately reverse course and reject the administration’s view that it can detain people simply on the president’s say-so," said Jennifer Daskal of Human Rights Watch, while the ACLU offered a similar reaction.

"This was a victory for those seeking to restore both the rule of law and our nation’s Constitution," said Caroline Fredrickson of the group’s Washington office. "While the amendment ultimately was not filibuster-proof, a majority of senators have made it clear that they want to restore the right of habeas corpus."

"A firm majority of the of the Senate voted in favor of restoring habeas corpus sends a message that there is widespread support returning to the rule of law," said HRF’s Devon Chaffee.

Indeed, Wednesday’s vote is unlikely to settle the matter, as a similar measure may soon come before the Democratic-led House of Representatives, where bills cannot be filibustered by the minority. If it passes the House, it will go to a House-Senate conference committee, which will likely take note that it was supported by a majority in the upper house.

In addition, the Supreme Court is due to take up an emergency appeal by two groups of Guantánamo detainees against the denial of habeas corpus under the Military Commission Act (MCA) of 2006 later this fall. In an earlier case, the Court ruled that detainees have the right to appeal their status as "enemy combatants" in federal court.

In that case, the court found that the administration of President George W. Bush, in establishing its own system of military courts to try suspected terrorists, had exceeded its constitutional powers.

As a result, the administration asked the then-Republican-led Congress to enact legislation  the MCA  that effectively ratified the system the administration had already put in place, including the denial of detainees’ rights to challenge their detention in federal court.

The Senate approved the bill last September, just weeks before the Republicans lost their majority in both houses of Congress. It rejected by a 51-48 vote an amendment sponsored by the then Republican chairman of the Senate Judiciary Committee, Arlen Specter, to restore habeas corpus in the bill. "What this bill will do is take our civilization back 900 years," argued Specter during the debate, noting that "the Great Writ," as it is sometimes called, dates back to the English Magna Carta of 1215.

Much the same argument was made today, both by Specter and his Democratic successor on the Judicial Committee, Patrick Leahy. "The truth is that casting aside the time-honored protection of habeas corpus makes us more vulnerable as a nation because it leads us away from our core American values," Leahy said. "It calls into question our historic role as a defender of human rights around the world."

But MCA defenders argued that the detainees were likely to abuse the courts if they were granted habeas corpus rights by making frivolous appeals that would clog the system.

"To start that process would be an absolute disaster for this country," said Sen. Lindsey Graham, who co-sponsored the MCA last year. "I cannot think of a more ill-advised effort to undermine a war that I think will be a long-standing effort."

"Never has such an unprecedented legal right been granted to a prisoner of war or detainee," noted Sen. John Kyl, another MCA defender.

But, as indicated by the difference in votes between last September and today, sentiment for granting habeas corpus rights has grown in the interim, fueled in part by stories regarding the hundreds of Guantánamo detainees  once described as the "worst of the worst"  who never were involved with al-Qaeda or the Taliban, and widely publicized charges in July by a reserve intelligence officer assigned to the military tribunals that hearings were arbitrary and often relied on evidence that was "garbage."

The New York Times and Washington Post this week published strong editorials in favor of reinstating habeas corpus rights. Even Bush’s influential former speechwriter, Times columnist Michael Gerson, called earlier this month for the Guantánamo detainees to be brought to the United States and permitted to argue their cases before federal judges.

It is also possible that Bush’s pick for attorney general, Michael Mukasey, may be sympathetic to restoring habeas corpus. As a New York federal judge, he ruled that a US citizen, Jose Padilla, who was held as an "enemy combatant," was entitled to a legal representation under the US Constitution.